Fording, Teck Cominco, Sherritt Coal and Westshore Complete Combination Plan

On February 28, 2003, Fording Inc., Teck Cominco Limited, Westshore Terminals Income Fund, Sherritt Coal Partnership II, a partnership of Sherritt International Corporation and Ontario Teachers’ Pension Plan, and CONSOL Energy Inc. completed a $2 billion multi-party, multi-step transaction that was first announced on January 13.

Pursuant to the transaction, which proceeded by way of plan of arrangement, Fording was converted into an income trust called the Fording Canadian Coal Trust, and the Elk Valley Coal Partnership was created. The Elk Valley Coal Partnership is a general partnership, the partners of which are a wholly owned subsidiary of the Fording Canadian Coal Trust (as to 65 per cent) and Teck Cominco and its affiliates (as to 35 per cent). Teck Cominco is the managing partner of the partnership.

As part of the transaction, Luscar Energy Partnership (the partners of which are affiliates of each of Sherritt and Teachers’, and CONSOL Energy), contributed to the Elk Valley Coal Partnership their respective interests in the Line Creek mine, the Luscar mine and the undeveloped Cheviot deposit, as well as their collective 46.4 per cent interest in Neptune Bulk Terminals (Canada) Ltd. Fording contributed to the partnership, its metallurgical coal business comprised substantially of the Fording River mine, the Coal Mountain mine and its interest in the Greenhills mine and Teck contributed to the partnership its metallurgical coal business comprised substantially of the Elkview mine, as well as $125 million in cash. The partnership’s creation represents the consolidation of the Western Canadian metallurgical coal business under a single entity.

As part of the transaction, the partnership entered into a long-term port agreement with Westshore Terminals. In addition, and as part of the transaction Fording sold to Sherritt Coal Partnership II its thermal coal operations and each of Teck Cominco, Westshore, Sherritt and Teachers’ subscribed for units of the Fording Canadian Coal Trust.

Fording was represented by in-house counsel James Jones; in Canada, by Osler, Hoskin & Harcourt LLP with a team that included Sherri Fountain (commercial real estate), Peter Glossop and Steve Sansom (competition), Jack Silverson, Donald Watkins, Nancy Diep and Alex Pankratz (tax) and Paul Litner (pensions & benefits) and an M&A team led by Frank Turner and including Stan Magidson, Christopher Murray and Andrée Blais, and Tristram Mallett (litigation), R. Jack Thrasher (energy), Pierre Magnan, Peter Piliounis, Michal Pomotov and Gavin Price (corporate), Joseph Cosentino and Brian Temins (income trust), Terra Klinck and Deron Waldock (benefits) and Damian Rigolo (employment); and by McCarthy Tétrault LLP with a team that included Mike McIntosh and Jay Hayden (financing).

In the U.S., Fording was represented by Sidley Austin Brown & Wood LLP with a team that included Jon Gregg, Steven Sutherland and James Carey (corporate), Scott Freeman (M&A), Robert Wootton (tax) and Harlan Cohen (corporate securities), and by White & Case with a team that inlcuded M. Elaine Johnston, Lutz Becker, David Ernst and Mark Powell (antitrust).

Teck Cominco was represented in-house by Peter Rozee, vice-president, commercial and legal; and in Canada, by Lang Michener with a team that included Geofrey Myers, Robert Cranston, Hellen Siwanowicz and Adam Taylor (M&A and securities), James Musgrove and Dan Edmondstone (competition) and Warren Seyffert (corporate strategy) in Toronto and Charlotte Olsen and Barbara Collins (M&A and securities), Tony Knight (real property) and Sandra Knowler (corporate commercial) in Vancouver; and by Doug Powrie (corporate tax) of Thorsteinssons.

Teck Cominco was represented in the U.S., by Paul Weiss, Rifkind, Wharton & Garrison LLP with a team that included Edwin Maynard, Steven Howard, Valerie Demont, Thomas Majewski and Vance Woodward (M&A and securities) and Didier Malaquin (competition); and in Europe, by Linklaters with a team that included Johan Ysewyn, Nicole Ada, Romina Polley, Claudia Berg, Carsten Grave, Eve Jordan and Jean-Nicolas Maillard (EU competition).

Westshore was represented in-house by Michael Korenberg, vice-chairman and managing director, and by Nick Desmarais, managing director, legal, The Jim Pattison Group, assisted by Lawson Lundell in Vancouver with a team that included John Smith and Nathan Daniels (corporate & commercial/securities) and Michael Low and Maria Preovolos (banking).

CONSOL Energy was represented by in-house counsel Sam Skeen in Pittsburgh, and by Lawson Lundell with a team that included Chris Baldwin, Tony Ryan, Khaled Abdel-Barr, J-P Bodgen and Jag Shergill (corporate/mining/mergers & acquisitions), Valerie Mann (competition) and Len Glass (tax).

Sherritt and Teachers’ were represented by in-house counsel Samuel Ingram, Q.C., and Abraham Rubinfeld, Sherritt, and Michael Padfield, Teachers’, and Allen Maydonik, Q.C., Luscar; in Canada, by Torys LLP with a team that included Geoffrey Creighton, Patrice Walch-Watson, Alexandra Kau, Michael Siltala, Philip Panet, Tamara Kronis, Harry Gousopoulos and Amanda Roelofson (corporate/M&A), John Unger and Ronald Nobrega (tax), Adam Delean, Alison Lacy, Sonia Campbell, Suh Kim and Conrad Sheppard (banking/finance) and James Tory (litigation); by Bennett Jones LLP with a team that included John Rook, Q.C., and Y. Beth Riley (competition); and by Parlee McLaws LLP with a team that included Terry Cockrall, Q.C., John McClure and Leanne Krawchuk in Alberta.

In the U.S., Sherritt was represented by Mayer, Brown, Rowe & Maw with a team that included James Junewicz, James Lidbury, Donald Zeithaml, Jr., H. Richard Hagen, Rebecca Robeson and Matthew Shabat (corporate/M&A), J. Paul Forrester and Salvatore Guerrera (banking/finance), Simeon Kriesberg (trade regulation), Scott Perlman (antitrust) and Michael Butowsky, Stuart Strauss and James Dwyer (investment and regulatory).